Wednesday, July 30, 2014

Circuit holds that the force required to support an abduction enhancement under § 2B3.1(b)(4)(A) is determined by an objective standard, and that a temporary taking of property may justify application of the loss enhancement under § 2B3.1(b)(7)(B).



(Rendell, Chagares, Jordan, J.)

Thomas Smith pulled his car off of the road, pretending to be disabled, and flagged down the manager of the local Citizens & Northern Bank, Kimberlea Whiting, who was driving home from the bank for lunch.  Smith’s motive was revenge:  He blamed the bank for initiating foreclosure proceedings on his house.  Smith drew a gun, which was stolen, and ordered Whiting to drive to the bank, saying she and another bank employee were going to pay for taking his house.  Once at the bank, Smith directed Whiting to drive to the rear parking lot.  Whiting, fearing he would shoot her there, continued past the lot. She ultimately slowed her Ford Explorer and rolled out of it and onto the street. When the Explorer came to a stop, Smith abandoned it and fled on foot.  Smith was convicted of carjacking, brandishing a firearm during a crime of violence, and possessing a stolen firearm after trial.

            The appeal challenged the district court’s application of two sentencing enhancements - - a four-level enhancement under § 2B3.1(b)(4)(A) for the victim’s abduction, and a one-level enhancement under § 2B3.1(b)(7)(B) for the victim’s loss. 

Section 2B3.1(b)(4)(A) of the Sentencing Guidelines applies “[i]f any person was abducted to facilitate commission of the offense or to facilitate escape.” U.S.S.G. § 2B3.1(b)(4)(A) (2012). The Court describes three predicates for the abduction enhancement.  First, the robbery victims must be forced to move from their original position; such force being sufficient to permit a reasonable person an inference that he or she is not at liberty to refuse. Second, the victims must accompany the offender to that new location. Third, the relocation of the robbery victims must have been to further either the commission of the crime or the offender's escape.

Here, Smith used force to control both Whiting and her vehicle by pointing a gun at her and directing her to drive to the bank.  He forced Whiting to accompany him to a new location. And Smith forced Whiting to return to the bank to facilitate his threatened revenge for the foreclosure on his home.

Smith’s challenge to the enhancement was based on the fact that Whiting disregarded some of his commands and ultimately escaped.  The Court declines what it calls Smith’s invitation to fashion an exception to the abduction enhancement for when a victim struggles with the offender to the point that he or she thwarts the intended criminal objective, explaining that the invitation “is based on the perverse logic that a victim's boldness lessens a criminal's culpability.”  Use of force is determined by an objective, not subjective, standard. “Thus, whether or not a victim struggles or disobeys orders, as long as a reasonable person would not have felt free to refuse the offender's commands, the predicate is satisfied.” The court makes explicit the holding that “the intended crime need not be accomplished for the abduction enhancement to apply.”  

            Smith next argues that the court wrongly applied the loss enhancement because Whiting's car was not “taken, damaged, or destroyed,” as those terms are used in § 2B3.1 of the Guidelines.  Application Note 3 in the Commentary to Section 2B3.1 defines “loss” for purposes of robbery as “the value of the property taken, damaged, or destroyed.” U.S.S.G. § 2B3.1 cmt. n. 3.  Smith did not damage or destroy the vehicle and was only a temporary passenger.  The Court declines to limit “taken” to situations involving a permanent deprivation of property.  Following opinions from several other circuits, the Court holds that here, Smith exercised dominion and control, albeit temporarily, over the vehicle when he coerced Whiting, against her will and at gunpoint, to drive to the bank. Whiting's later escape did not erase that taking.  

The Court affirms the judgment of sentence.

Summary by Renee D. Pietropaolo

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